Democratic Nat'l Comm. v. Bostelmann

447 F.Supp.3d 757

DEMOCRATIC NATIONAL COMMITTEE and Democratic Party of Wisconsin, Plaintiffs,

v.Marge BOSTELMANN, Julie M. Glancey, Ann S. Jacobs, Dean Knudson, Robert F. Spindell, Jr. and Mark L. Thomsen, Defendants.

20-cv-249-wmc

United States District Court, W.D. Wisconsin.

Signed March 20, 2020

Amanda Callais, Marc Erik Elias, Bruce Van Spiva, Perkins Coie LLP, Washington, DC, Charles Grant Curtis, Jr., Sopen Bharat Shah, Perkins Coie LLP, Madison, WI, for Plaintiffs.

Brian P. Keenan, Jody J. Schmelzer, State of Wisconsin Department of Justice, Madison, WI, Sean Michael Murphy, HCP Consumer Law, LLC, Madison, WI, for Defendants.

OPINION AND ORDER

WILLIAM M. CONLEY, District Judge

In light of the ongoing impact of the COVID-19 crisis, the Democratic National Committee ("DNC") and the Democratic Party of Wisconsin seek a temporary restraining order and preliminary injunction barring enforcement of three requirements for the upcoming April 7, 2020, election: (1) the current electronic and mail-in voter registration deadline under Wis. Stat. § 6.28(1) of March 18, 2020; (2) the requirement that polling places receive absentee ballots by 8:00 p.m. on election day to be counted under Wis. Stat. § 6.87 ; and (3) the requirements of proof of residence and voter ID for electronic and mail-in registration and of photo identification for absentee ballot applications under Wis. Stat. §§ 6.34, 6.86, 6.87. (Dkt. #2.)

Yesterday, the court held a telephonic conference with counsel for the parties -- plaintiffs appeared by private counsel and defendants appeared by the Department of Justice. In addition, the court allowed counsel for the Wisconsin Legislature to participate based on its expressed intent to file a motion to intervene and a motion to dismiss plaintiffs’ complaint. (Dkt. #8.)¹ After the hearing, the court directed defendants to file a written response to plaintiffs’ motion for TRO and preliminary injunction, as well as set a deadline of noon today for the proposed intervenor to seek to intervene formally and its own response to plaintiffs’ motion.²

In light of the plaintiffs’ motion and supporting materials, defendants’ and the proposed intervenor's respective responses, arguments by all parties during the telephonic conference, and the near certainty of increasing barriers to in person voting for the April 7, 2020, election due to the COVID-19 pandemic, the court will grant in part and deny in part plaintiffs’ motion for a temporary restraining order. Specifically, the court will grant plaintiffs’ request to extend the deadline by which an individual can register to vote electronically to March 30, 2020, and deny the motion in all other respects at this time. In denying the remaining aspects of plaintiffs’ motion for a temporary restraining order, the court expressly reserves on their request for extension of the date by which absentee ballots may be counted toward the election, which may still be taken up by motion for a preliminary injunction, either on or after April 7, or earlier if plaintiffs believe they have sufficient evidence to support that request, including the submission of proper, proposed findings of fact.

FACTS

A. Challenged Election Laws

Plaintiffs filed their complaint and the present motion on the afternoon of Wednesday, March 18, 2020, the third Wednesday before the April 7, 2020, election, which was also the last day for electronic and mail-in registrations for that election under Wisconsin Statute § 6.28(1). Left unchanged, individuals who still need to register to vote for the April 7 election must now either register in person (1) at the municipal clerk's office on or before Friday, April 3, 2020, or (2) at their polling place on the date of the election, Tuesday, April 7, 2020. In past elections, between 11% and 12% of voters registered at their polling place on the date of the election. (Pl.’s Br., Ex. 5 (dkt. #3-6) (12.7% of voters registered on election day in 2016 general election; 11.2% of voters registered on election day in 2014 general election).)

Under Wisconsin Statute § 6.87(6), absentee ballots must arrive at the municipal clerks’ offices by 8:00 p.m. on election day to be counted. Under § 6.87(6)(b), individuals can request absentee ballots by submitting an application by April 2, 2020, the Thursday before the election, but must already be registered to do so online. In order to request an absentee ballot, individuals must also provide copies of photo identification pursuant to Wisconsin Statute § 6.86 and § 6.87.

Finally, Wisconsin Statute § 6.34 requires individuals seeking to register to vote electronically or by mail to provide copies of proof of residence. Section 6.34 contemplates proof of residence besides a valid, unexpired driver's license or Wisconsin State ID card, but practically speaking, if the same individual who is seeking to register online also wants to vote by absentee ballot, then that individuals would have to provide a picture or copy of a valid, unexpired Wisconsin driver's license or Wisconsin State ID card.

B. COVID-19 Health Crisis

As of March 19, 2020, 155 people in Wisconsin had tested positive for COVID-19, although a substantially larger number has likely already contracted it.³ On March 17, Governor Evers had ordered "a statewide moratorium on mass gatherings of 10 people or more to mitigate the spread of COVID-19." (Pls.’ Br., Ex. A (dkt. #3-2).) Moreover, restaurants, bars, indoor shopping malls and all public and private schools have been ordered closed. (Id. ) Libraries are also closing, including those in Madison. (Id. , Ex. 3 (dkt. #3-4).)

According to recent news reports, while "[e]stimates vary, ... most public health experts believe that the U.S. is between one and two weeks behind what has befallen Italy, where a near-total lockdown has been imposed on 60 million citizens, with only supermarkets and drug stores open to the public."⁴ At best, the impacts of the coronavirus between now and election day on April 7th are uncertain, although informed predictions are not good.

Plaintiffs reason that because of existing restrictions, as well as the likelihood of even greater restrictions, voters will rely on voting by absentee ballots in significantly higher numbers than typical. Yet but individuals who have not already registered (or modified their registration to vote because of a change in address) no longer have the option to do so other than in person . As support, plaintiffs point to the relatively large number of absentee ballots already requested relative to past Spring elections. For example, as of the morning of Tuesday, March 17, the Wisconsin municipal clerks have received 173,000 absentee applications, of which 22% were received on Monday, March 16. (Pl.’s Br., Ex. 2 (dkt. #3-3).) With more than two weeks until the April 2 deadline for requesting absentee ballots, the number of requests already exceeds three out of the four most recent Spring elections. (Id. )⁵

Moreover, in elections held in other states this past Tuesday, March 17, 2020, "significantly fewer voters showed up in-person on Tuesday, and turnout plummeted in Illinois, amid rising health concerns and social-distancing requirements."

OPINION

I. Standing

As an initial matter, the threshold jurisdictional question of standing must be addressed. See Freedom From Religion Found., Inc. v. Zielke , 845 F.2d 1463, 1467 (7th Cir. 1988) ("Standing is a threshold question in every federal case ...."); Bender v. Williamsport Area School Dist. , 475 U.S. 534, 541, 106 S.Ct. 1326, 89 L.Ed.2d 501 (1986) (federal courts are obligated to consider the question of standing, regardless of whether the issue is raised by the parties). "An association has standing to bring suit on behalf of its members when its members would otherwise have standing to sue in their own right, the interests at stake are germane to the organization's purpose, and neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit." Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc. , 528 U.S. 167, 181, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (citing Hunt v. Washington State Apple Advertising Comm'n , 432 U.S. 333, 343, 97 S.Ct. 2434, 53 L.Ed.2d 383 (1977) ).

In the voting rights context, courts have held that political parties have standing to assert the rights of its members who may face burdens to vote in upcoming elections. See, e.g., Crawford v. Marion Cty. Election Bd. , 472 F.3d 949, 951 (7th Cir. 2007), aff'd , 553 U.S. 181, 128 S.Ct. 1610, 170 L.Ed.2d 574 (2008) ("The Democratic Party ... has standing to assert the rights of those of its members who will be prevented from voting by the new law."); Sandusky Cty. Democratic Party v. Blackwell , 387 F.3d 565, 574 (6th Cir. 2004) (political parties and labor organizations had "standing to assert, at least, the rights of their members who will vote in the [upcoming] election"); Fla. Democratic Party v. Scott , 215 F. Supp. 3d 1250, 1254 (N.D. Fla. 2016) ("[P]olitical parties have standing to assert, at least, the rights of its members who will vote in an upcoming election.") (citing Fla. Democratic Party v. Hood , 342 F.Supp.2d 1073, 1078-79 (N.D. Fla. 2004) ). Moreover, an organization may establish standing by asserting injury to their own rights. See Crawford , 472 F.3d at 951 (Democratic Party injured by new voting law that compelled party to "devote resources to getting to the polls those of its supporters who would otherwise be discouraged by the new law from bothering to vote"); One Wisconsin Inst., Inc. v. Thomsen , 198 F. Supp. 3d 896, 909 (W.D. Wis. 2016) (organizations had standing to challenge new voting laws by establishing that they "devoted money, staff time, and other resources away from their other priorities to educate voters about the new laws").

Here, plaintiffs are two membership organizations -- the DNC and the Democratic Party of Wisconsin. Plaintiffs claim that the challenged...